Grave Injustice

Maher Arar and Unaccountable America

On June 14, the Supreme Court buried the prospect of justice for Maher Arar, a Canadian citizen of Syrian origin who was “extraordinarily rendered” by the United States (via Jordan) to Syria in 2002. Arar was suing the US officials who authorized his secret transfer, without charge, to a country infamous for torture. With the justices’ 22-word statement, the case of Arar v. Ashcroft exited the American legal system and entered the annals of American legal history under the category “grave injustice.” Alphabetically, Arar precedes Dred Scott v. Sanford, which upheld slavery, and Korematsu v. United States, which upheld the internment of Japanese Americans. In this case, however, the grave is literal: Arar spent ten months of his year in Syrian custody confined in what he describes as “an underground grave.”

Although Arar v. Ashcroft was a product of the Bush administration’s torture policy, the Supreme Court’s rejection of Arar’s petition was a victory for the Obama administration, which had sought that outcome. In the government’s motion, following the obligatory pieties that the US does not countenance torture, Deputy Solicitor General Neal Katyal argued that adjudication would require the courts to “review sensitive intergovernmental communications, second-guess whether Syrian officials were credible enough for United States officials to rely on them…as well as the motives and sincerity of United States officials who concluded that petitioner could be removed to Syria.” [1] The move to quash this suit is the latest evidence that when President Barack Obama says he wants to “look forward, not backward,” he means that he wants to keep embarrassing information about serious official misconduct in the “war on terror” and criminal disregard for the law out of the public domain. The courts have been receptive to the Bush-Obama arguments that such cases would damage national security and foreign relations, with majorities contending that, no matter how egregious the allegations or how abundant the evidence of torture, they are non-justiciable.

There is a harmony among the three branches of government in the shared and cooperative unwillingness to hold US officials accountable for their roles in perpetrating or abetting grave breaches of law. As long as the accused are Americans, the “new normal” is impunity for torture. Ironically, however, US courts are still amenable to hearing and deciding cases against officials who perpetrate or abet torture for foreign regimes, like Haiti’s Emmanuel Constant and Liberia’s Charles Taylor, who were recently and successfully sued by their victims in America.

Transit Into Darkness

Arar’s ordeal began on September 26, 2002, while he was changing planes at John F. Kennedy International Airport in New York on his way back to Canada from Tunisia, where he had been visiting his wife’s family. Arar traveled frequently to the US and in April 2002 had renewed his American work permit because he did consulting for a Boston-based company. On this occasion, he was detained, then moved to a high-security section of the airport and held incommunicado. He was questioned about al-Qaeda and about his relations with other Canadian Muslims, as well as his views on Iraq and Palestine. At one point, he was shown a copy of his 1997 rental agreement that listed Abdullah Almalki, another Syrian Canadian engineer, as an emergency reference. [2]

Since the late 1990s, unbeknownst to Arar, Almalki had been under surveillance by the Royal Canadian Mounted Police (RCMP) as part of a broad investigation into possible terrorist activities among Muslims in Toronto and Ottawa. Almalki had aroused suspicion because, in the early 1990s, he worked in Pakistan and Afghanistan for a Canadian charity, Human Concern International, whose regional director was Egyptian-born Canadian Ahmad Said Khadr. In 1994, Almalki quit the job after a dispute with Khadr and returned to Canada. Khadr had a long history of both charitable work and militancy in Afghanistan. In January 2001, his name was added to a UN list of people who support terrorism associated with Osama bin Laden. (Khadr was killed by the Pakistani army in a firefight in Waziristan in October 2003. His son Omar was captured by US forces in Afghanistan in 2002 when he was 15 years old, and he was transported to Guantánamo Bay in 2003, where he remains to this day facing trial before a military commission.)

Arar had become a “person of interest” to the Mounties on October 12, 2001, when he met Almalki at a shawarma restaurant in Ottawa where they discussed obstetricians (Arar’s wife was pregnant with her first child) and then bought an ink cartridge together. The agents spying on Almalki found it suspicious that the two men spent some time that rainy day talking outside. Arar was added to the list of Canadians deemed to merit security scrutiny. In February 2002, an FBI agent met with his Canadian counterparts to exchange information about their respective post-September 11 investigations, and it is possible that a copy of Arar’s rental lease was turned over at this time.

Under interrogation at JFK, Arar realized that the Americans were not about to concede their mistake in suspecting that he was a member of some al-Qaeda sleeper cell. He was told that he would be deported -- “removed,” the agents said. Although the Mounties had been the source of the tip that he was wanted for questioning, there was no truth to the US claim that Canada was unwilling to admit him back into the country. If Canada was not an option, Arar pleaded to be sent back to Tunisia or to Switzerland, through which he had also transited. Anywhere but his native Syria, where he feared he would be tortured.

Arar’s family, frantic over his disappearance, hired a lawyer. She was permitted to meet with him ten days into his US detention. David Cole, one of the attorneys from the Center for Constitutional Rights who represented Arar in his civil suit, explains what happened following that Saturday afternoon meeting:

[T]he government hastily scheduled an extraordinary hearing for the next night -- Sunday evening -- and only “notified” Arar’s lawyer by leaving a voicemail on her office answering machine that Sunday afternoon. They then falsely told Arar that the lawyer had declined to participate, and questioned him for six hours, until 3 am Monday. When Arar’s lawyer retrieved the voicemail message later that Monday morning, she immediately called the Immigration and Naturalization Service. They told her falsely that Arar was being moved to New Jersey, and that she could contact him there the next day. In fact, he remained in New York until late that night, when he was put on a federally chartered jet and spirited out of the country. US officials never informed Arar’s lawyer that he had been deported, much less that he had been delivered to Syrian security forces. [3]

The US officials responsible for deciding Arar’s fate must have been well aware of the Syrian security services’ propensity for torture, which is documented in annual State Department reports. By sending Arar to Syria, they violated the customary international law principle of non-refoulement, which categorically prohibits any government from transferring a person to a country where there are “substantial grounds for believing” that he or she will be tortured. The officials chose to ignore an immigration review panel that concluded that Arar would be tortured if sent to Syria. More cynically, the same month that Arar was arrested, the Bush administration registered its opposition to the Syrian Accountability Act, contending that this draft legislation “ties its hands at a very important moment.” Because the officials who rendered Arar to Syria never had to answer for their actions in a US court of law, the allegation that he was sent there for the purpose of torture stands legally uncontested. As legal expert Scott Horton has written, the fact that the Syrian interrogators asked Arar the same questions that the Americans had asked and were in regular contact with Washington about his interrogation confirms the “prima facie conspiracy to torture.”

Web of Tortured Lies

Arar’s torture began the day after he arrived in Syria. The beatings were ferocious, and on the third day, as he has recounted, “I lost all my strength, and I told them what they wanted to hear.” He falsely confessed that he had trained at an al-Qaeda camp in Afghanistan. In fact, Arar has never been to Afghanistan. But this allegation, forwarded from Washington, emanated from a broader web of tortured false confessions by other prisoners.

One of the people who had falsely named Arar as an al-Qaeda operative was Ahmad Abou El Maati, a Kuwaiti-born Canadian citizen. [4] El Maati had traveled to Syria on November 12, 2001 to marry his Syrian fiancée and was arrested at the Damascus airport. He was taken to military intelligence’s Palestine Branch, a complex notorious as Syria’s premier torture site. Between rounds of interrogation that involved beatings with cables, dousings with ice water and threats to rape his fiancée, he was kept in one of the grave-like cells in the complex. His interrogators wanted El Maati to confess that he had seen Almalki and Arar in Afghanistan, and that he and his brother Amr were al-Qaeda operatives who were planning to bomb the US embassy in Ottawa. Fearing that the Syrians might turn him over to the US, he falsely confessed verbally that he had planned to bomb the Canadian parliament building.

But when El Maati was forced to write his confession, he instead wrote the true account of a map left by someone else in the glove compartment of a delivery truck he was driving for work and found when he was stopped at the Canadian border. That map, which included government buildings, had triggered the Mounties’ suspicions that he was part of a sleeper cell. His Syrian interrogators, angered that his written statement did not comport with the confession they wanted, brutally beat him and burned him with cigarettes. At that point he was incapable of writing anything, so the interrogators wrote a confession and forced him to sign it without allowing him to read it. In January 2002, El Maati was transferred to Egypt where he was tortured even more savagely than in Syria. When he finally met a Canadian consular official in August 2002, he relayed information about his Syrian torture and the false confession he had signed. But because Egyptians were present, he said nothing about his treatment there, except that his asthma was exacerbated by the airless cell where he was kept. In 2003, a relative who visited him in the Cairo prison told him that his fiancée’s family had annulled the marriage contract out of fear for their own safety.

There is no way of knowing with certainty how multilateral clandestine collusions in terror investigations unfold, but the failure to charge and the release of prisoners is an implicit admission of error. On January 11, 2004, El Maati was released from Egyptian custody and, after several aborted attempts, was able to leave the country and return to Canada. On May 26, in a primetime news conference, FBI Director Robert Mueller and Attorney General John Ashcroft claimed they had “hard” evidence of an impending attack on the US, alluding to some information from El Maati’s false confession to the Syrians.

On May 3, 2002, Almalki traveled to Syria for the first time since emigrating as a teen in 1987 in order to visit his sick grandmother. [5] He was detained at the Damascus airport and then transferred to Palestine Branch. He, too, was questioned about other Canadians, including El Maati (who at the time was in Egyptian custody). He was subjected to falaqa (beating on the bare soles of his feet) with a heavy cable, then forced to get up and jog in place. Dousing with water intensified the pain of the beatings. He falsely confessed that he knew Osama bin Laden, concocting a story that they had met when he was working in Pakistan. He rebuffed his interrogators’ allegation that he was bin Laden’s right-hand man, but -- in a fit of tortured sarcasm -- admitted to being his left-hand man. But the Syrians knew that bin Laden had been in Sudan during the period when Almalki was working in Pakistan, so they beat him for lying. Interrogators later told him that on that first day, he had been lashed 1,000 times with the cable, extraordinary even by Syrian standards. He was also subjected to electric shock, the “German chair” (a device resembling the medieval rack that hyper-extends the spine) and nail pulling. [6] He, too, was dispatched to the underground grave where he spent most of the next 482 days in Syrian custody. In subsequent interrogations, they began asking him about his relationship with Ahmad Khadr, which they claimed proved he was linked to al-Qaeda.

On June 12, 2002, the fortieth day of his detention, Almalki was interrogated by George Saloum, head of the investigation unit. Saloum asked very specific questions about approximately 20 Canadian Syrians, including Arar. Over the next eight months, Almalki was forced to write detailed accounts of all his business dealings and contacts, and he realized that the Syrian interrogators were drawing on information provided by the Canadians from a search of his Ottawa apartment. On July 7, a Syrian relative was permitted to meet him for 15 minutes, and told him that his situation had “international” implications because the Canadians wanted him sent to Guantánamo. In mid-July the beatings intensified, and he confessed falsely that he had trained in Afghanistan. More beatings, and he said that El Maati had been at the training camp, too.

On September 26, four days after Arar was arrested at JFK, Almalki was questioned by Saloum and five other interrogators about Arar -- although initially, they had the wrong spelling of Arar’s name and Almalki could not figure out who they were asking about. He was told to write down everything he knew about Arar, and threatened that he would be beaten until he needed hospitalization if he lied. Questioning about Arar continued for days. When asked if Arar had ever been to Afghanistan, Almalki said no, not to his knowledge. Saloum told him that Arar would be there soon and if Almalki had lied, he would be put in the German chair until he was paralyzed. In the early hours of October 8, Arar was boarded onto the secret rendition flight to Jordan, and then transported to Syria.

For ten days in October 2002, Arar’s and Almalki’s torture was synchronized, and each was accused of lying because the other ostensibly said something different. Almalki continued to be tortured and interrogated sporadically over the next year. On September 6, 2003, he was transported to Sidnaya prison where he found Arar, who had been there since August.

The Syrians concluded that the allegations that they had received against both men were baseless. On October 5, 2003, Arar was released to the custody of a Canadian embassy official in Damascus and flown to Ottawa the next day. Arar told his story publicly for the first time on November 4, stating that he had been with Almalki in Sidnaya and describing his wrecked condition. That day, Amnesty International issued an urgent action alert calling for Almalki’s release. With media attention escalating and questions multiplying, the Canadian Crown moved to have evidence about domestic investigations of Arar, Almalki and others sealed. On March 10, 2004, Almalki was released but ordered to remain in Syria, and was warned that if he spoke to the media, he would be putting his Syrian relatives at risk. On July 28, he was able to leave the country and return to Canada.

Justice, Canadian-Style

Arar became an iconic victim of government excess and his rendition a cause célèbre of multilateral conspiracy to torture. Canadian public outrage over his treatment, exacerbated by an RCMP insinuation to an Ottawa Citizen journalist that he was indeed an al-Qaeda terrorist, spurred the establishment of an official commission of inquiry on February 5, 2004.

The Arar Commission, headed by Judge Dennis O’Connor, was tasked with investigating and reporting on the actions of Canadian officials “in relation to Mr. Arar” and recommending policy review mechanisms for the Mounties with respect to national security. Following an investigation that included interviews with over 70 officials and a review of approximately 21,500 documents, [7] the Commission released its 1,100-page report on September 18, 2006, concluding “categorically that there is no evidence to indicate that Mr. Arar has committed any offense or that his activities constitute a threat to the security of Canada.” While the Commission found no evidence that Canadian officials played a direct role in the decision to detain Arar at JFK or to send him to Syria, the Mounties had erred -- and violated their own policies -- by providing information to the US before and after his arrest that was “inaccurate, portrayed him in an unfairly negative fashion and overstated his importance in the RCMP investigation.” The head of the RCMP resigned after the Arar Commission report was released and, three months later, Canada’s public safety minister announced the initiation of separate investigations into any role officials had played in the Syrian detention and torture of three other citizens: El Maati, Almalki and Iraqi-born Muayyed Nureddin.

On January 26, 2007, Prime Minister Stephen Harper issued an official apology to Arar on behalf of the Canadian government, and announced that he would receive a $10.5 million (Canadian) settlement as compensation for his ordeal and an additional million to cover his legal fees. While no amount of money or apology can undo the effects of torture -- “Whoever was tortured, stays tortured” [8] -- the clearing of Arar’s name and reform of the policies that had contributed to his rendition to Syria were vindicating. The Canadian government had taken an appropriate step by investigating its own role in the perpetration of the crime of torture and offering redress for the victim.

Injustice, American-Style

There was no comparable move by the Bush administration to conduct an investigation, let alone hold officials accountable for the torture of Maher Arar. Indeed, at the time Arar was released from Syrian custody -- half a year before the publication of the Abu Ghraib photos and the declassification of the first batch of “torture memos” -- the US torture policy was operating at full tilt and remained shrouded in near-total secrecy. For example, in December 2003, Khaled El Masri, a Lebanese-born German citizen, was kidnapped by the CIA from Macedonia and extraordinarily rendered to a “black site” in Afghanistan where he was tortured for five months. When the CIA realized that his arrest was a case of mistaken identity, rather than apologizing or acknowledging what they had done, they dumped El Masri in a remote region of Albania, from which he eventually made it back to Germany. Binyam Mohamed, a British resident of Ethiopian origin, was arrested by the Pakistanis at the Karachi airport in April 2002 and then transferred to US custody in Afghanistan in May. In July, he was extraordinarily rendered by the CIA to Morocco where he was brutally tortured for 18 months, following which he was rendered back to Afghanistan and held in a black site. In September 2004, he was transferred to Guantánamo where he remained until his release and return to Britain in February 2009.

Arar, El Masri and Mohamed are three of the thousands of people who have been tortured by or at the behest of the US in the first decade of the twenty-first century. [9] But their names will go down in American history for their efforts to bring those responsible for their torture to account. In the face of bipartisan recalcitrance to conduct any meaningful investigation, as the Canadians had done with Arar and as the British would later do with Mohamed, these victims pursued the only option available to them in the US -- civil suits. Arar’s started first.

On January 22, 2004, the Center for Constitutional Rights filed Arar v. Ashcroft in the District Court for the Eastern District of New York. [10] The defendants were US officials serving at the time of Arar’s arrest in 2002: Attorney General John Ashcroft, Deputy Attorney General Larry Thompson, FBI Director Robert Mueller, Secretary of Homeland Security Tom Ridge, Commissioner for the Immigration and Naturalization Service (INS) James Ziglar, three other named immigration officials and ten “John Does” from the FBI and INS.

The government moved to shut down the litigation by invoking the “state secrets” privilege, asserting that the discovery of information about the decision making that led to Arar’s rendition to Syria would reveal sensitive intelligence gathering methods and would be harmful to US national security and foreign relations. On February 16, 2006, Judge David Trager dismissed Arar’s suit on the grounds that national security and foreign policy considerations are the purview of the executive and Congress, and even if US officials’ conduct violated treaty obligations or customary international law the courts can provide no remedy. Trager also dismissed Arar’s claims of due process violations while he was detained in the US on the grounds that, as a non-citizen who had not been “admitted” into the US, he had no constitutional standing to make such claims.

Six days before the release of the fact-filled Canadian Arar Commission report and six days after President George W. Bush gave a press conference in which he confirmed the existence of CIA black sites, extraordinary renditions and the official authorization of “enhanced interrogation methods,” on September 12, 2006 Arar filed a notice that he would appeal his case to the Second Circuit. His legal team filed the case on December 12. Meanwhile, despite Arar’s complete exoneration by the Canadians, the government barred him from traveling into the US in October 2007 to testify before Congress at a hearing that was examining his case and the policy of extraordinary rendition; he testified by video link. (His name remains on a no-fly list compiled under Bush and maintained under Obama.)

El Masri’s case was initiated after Arar’s and disposed of sooner, but it raised many of the same issues and produced similar judicial outcomes. On December 5, 2005, the American Civil Liberties Union filed El Masri v. Tenet in the District Court of the Eastern District of Virginia. (The CIA is headquartered in Langley, Virginia.) The defendants were CIA Director George Tenet, ten unnamed CIA agents and ten unnamed employees of the private corporation whose planes were contracted to transport El Masri between southern Europe and Afghanistan. The government asserted state secrets and on May 12, 2006, the District Court dismissed El Masri’s case. One month later, the Council of Europe released the report of its investigation into illegal US activities, finding that 100 people -- including El Masri -- had been kidnapped by the CIA on the continent.

On appeal to the Fourth Circuit, El Masri’s attorneys charged that the district court had made a legal error by endorsing the government’s overly broad interpretation of the state secrets doctrine in this case; in the past, the doctrine had been used to limit or restrict specific pieces of sensitive evidence, not to entirely block litigation alleging egregious government misconduct. But the dismissal was upheld by the Fourth Circuit, and on October 9, 2007, the Supreme Court declined to hear El Masri’s appeal.

Binyam Mohamed is one of five plaintiffs suing the private corporation whose planes were used in their extraordinary rendition to torture. In May 2007, the ACLU filed Mohamed et al v. Jeppesen Dataplan, Inc. in the District Court for the Northern District of California. [11] Again, the government invoked state secrets and in February 2008, the case was dismissed; the ACLU appealed to the Ninth Circuit. At the appeals hearing in February 2009, one month into the Obama presidency, one of the judges asked if there would be a change in the government’s position in this case, to which the answer was no. In April, the court reversed the district court’s decision, ruling that the government cannot invoke the state secrets privilege to dismiss the entire suit. The case was -- or would have been -- remanded back to district court, but the Obama administration appealed that decision and requested an en banc (11-judge panel) hearing. The oral arguments took place in December 2009, and until the Ninth Circuit produces its decision, Mohamed’s is the only one of the three cases still in play.

Unappealing Decisions

On June 30, 2008, in a 2-1 vote, the Second Circuit dismissed Arar’s case on the grounds that adjudicating his claims would interfere with national security and foreign policy. The dissenter, Judge Guido Calabresi, wrote that this decision gives federal officials the license to “violate constitutional rights with virtual impunity.” In August, the Second Circuit decided sua sponte (of its own volition) to rehear Arar v. Ashcroft en banc. The court heard oral arguments on December 9, 2008, and issued its decision on November 2, 2009.

The Second Circuit’s en banc ruling (7-4) affirmed earlier rulings that someone who was tortured by proxy at the behest of American officials can find no civil remedy in US courts. [12] The Arar decision is composed of three elements: First, US officials cannot be held responsible (or liable) for torture perpetrated by foreign agents abroad. Second, Congress never provided any legislative remedy for damages claims against officials who decide to “remove” a foreigner from the US, which moots any claims arising from how, why and to where he was removed. The third element addresses the question of whether US officials who violate an individual’s due process rights during an extraordinary rendition can be held accountable for constitutional violations. The majority held that “special factors” counseled against allowing the case to go forward because any provision of “a damages remedy against senior officials who implement an extraordinary rendition policy would enmesh the courts ineluctably in an assessment of the validity of the rationale of that policy and its implementation in this particular case, matters that directly affect significant diplomatic and national security concerns.”

Judge Calabresi, again dissenting, wrote, “When the history of this distinguished court is written, today’s majority decision will be viewed with dismay.” Echoing the views of the three other dissenters whose opinions he also joined, Calabresi decried the majority’s “utter subservience to the executive branch,” its misunderstanding of the Torture Victims Protection Act and the federal statute that prohibits torture and refoulement. In his dissenting opinion Calabresi addressed one additional failing of the majority: “extraordinary judicial activism,” a criticism typically leveled by conservatives at liberals who are deemed too attentive to the rights claims of victims. In this instance, however, the criticized activism involves judicial overreach to service the political goal of shielding government officials from legal accountability. The implications of this dismissal, Calabresi explained, are far-reaching: The “holding that Arar, even if all of his allegations are true, has suffered no remedial constitutional harm legitimates the Government’s actions in a way that a [mere] state secrets dismissal would not. The conduct that Arar alleges is repugnant, but the majority signals -- whether it intends to or not -- that it is not constitutionally repugnant.” [emphasis in original]

The Supreme Court’s decision not to hear Arar’s case leaves intact the Second Circuit’s en banc ruling. Thus, Arar did not “lose” his case; he never got the chance to make his case. Judicial majorities at every level were persuaded by the Bush-Obama torture-excusing, accountability-rebuffing arguments that led to the dismissal of Arar -- the case and the man.

Accountability by Other Means

On June 15, the day the Supreme Court’s dismissal of his appeal was announced, Arar made a surprising announcement of his own. For the last four years, he had been cooperating with the Mounties in their criminal investigation of the foreign officials responsible for his extraordinary rendition and torture. He told "Democracy Now!" the following: “They’ve been collecting evidence. They’ve been interviewing people both in Canada and internationally. They’ve traveled to some countries, and they’ve collected evidence. They spoke to some interesting people. And their focus is on the Syrian torturers, as well as those American officials who were complicit in my torture.” [13]

He continued, “They are looking to charge those people who tortured me physically, but they’re also looking into…whether my removal to Syria was part of a torture program. And if it was, then they would lay charges against those officials…who did this act of sending me to Syria. You have to remember, this is not an easy case… But I was told the investigation has made a lot of progress within the last year or so.”

The intellectual authors of the US torture policy, and those who bear direct responsibility for the extraordinary rendition of Arar, El Masri, Mohamed and others will probably enjoy de facto immunity in the US for the foreseeable future. Politics often trumps law. But torture is such an uncontestably prohibited practice that perpetrators and abettors can be prosecuted in a foreign national court system under the doctrine of universal jurisdiction. In this instance, however, if the Canadian investigation leads to an indictment of US officials who bear responsibility for his rendition to torture, the case would not involve universal jurisdiction. Rather, passive personality jurisdiction gives a government a legal right and a duty to investigate and prosecute foreigners who commit grave crimes under international law against their citizens. Certainly, most Americans would expect no less of their own government if a US citizen was subjected to the horrors that Arar has endured since that fateful day at JFK. Torture is a crime and prosecution is important not only as a future deterrent but as a way of attacking the “new normal” of impunity for the torturers in the present.